Article 6.13 Trials

(a) 6.13.1 If the accused does not appear personally at the trial, the court may proceed with the trial and convict and sentence the accused in their absence or set a new trial date.

(b) 6.13.2 Any trial, and any hearing under this Code other than a trial, may be conducted in a way that allows one or more parties to it to participate by audio link or video link, except that the accused cannot elect to be present by audio link or video link for the trial or any part of it unless the court so orders.

(c) (3) Where the court considers it just, the court may determine a matter (other than a trial) on the papers.

(d) (4) In every trial the judge constituting the court determines matters of fact and law. Trials shall be without a jury.

(e) 6.13.5 Every accused shall enjoy the presumption of innocence until proven guilty according to law. The prosecutor bears the legal burden of:

(A) proving every element of an offence relevant to the guilt of the accused; and

(B) disproving any matter in relation to which the accused has discharged an evidential burden of proof imposed on the accused.

“Legal burden” means the burden of proving the existence of the matter. The legal burden of proof requires proof beyond reasonable doubt.

(f) 6.13.6 An accused who wishes to rely on any defence, exception, exemption, excuse, qualification or justification provided by the law bears the evidential burden in relation to that matter. The accused no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecutor. “Evidential burden” means the burden of adducing or pointing to evidence that that the matter exists or does not exist on the balance of probabilities.

(g) 6.13.7 Subject to Article the procedure at each trial of a case is as follows:

(C) The prosecutor is entitled to give an opening address not exceeding one hour.

(D) The accused is entitled to give an opening address not exceeding one hour.

(E) The prosecution’s case:

(1) The prosecutor presents the evidence for the prosecution, including any statements, witnesses, and other evidentiary material.

(2) The accused is entitled to cross-examine any witness called by the prosecutor and to call, examine and re-examine any such witness. That right is subject to the power of the court to control any questioning.

(F) The defence case:

(1) The accused presents the evidence for the defence, including any statements, witnesses, and any other evidentiary material.

(2) Evidence by the accused:

(3) The accused cannot be compelled to give evidence but may elect to do so.

(4) If the accused elects to give evidence, the accused’s evidence must be given before any other witness called, or evidentiary material provided, by the defence, unless the court permits otherwise for a good reason.

(5) The failure of an accused to give evidence shall not be made the subject of any comment by the prosecution.

(6) The accused being a witness under this Article may be asked, and the court can compel the witness to answer, any question in cross-examination whether or not it would tend to incriminate them.

(7) The accused may admit matters of fact and matters so admitted are to be taken as proved.

(8) The prosecutor is entitled to cross-examine any witness (including the accused) called by the defence and to call, examine and re-examine any such witness. That right is subject to the power of the court to control any questioning.

(9) If the accused adduces evidence in their defence introducing new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut the matter. A witness called in rebuttal may be a previous witness recalled or a new witness.

(G) A person (other than the accused) who is or is to be a witness of fact or an expert witness must not be present in court, in person or by audio or video link, before that person has given evidence and has been discharged by the court from being recalled as a witness.

(H) The judge may question any witness.

(I) Without limiting any other way in which the court may inform itself about a case, the judge may order an inspection, view or experiment and make such orders about the process as the judge considers just.

(J) The prosecutor is entitled to give a closing address not exceeding one hour.

(K) The accused is entitled to give a closing address not exceeding one hour.

(L) If in an accused’s closing address any fact is asserted that is not supported by evidence in the trial, the court may permit the prosecutor to give an address to the court in reply to the assertion.

(M) The court may extend time for opening and closing addresses where it considers the case justifies this.

(N) If at any time after the close of the prosecutor’s case and before the court gives its verdict on a charge the court is satisfied that the accused has no case to answer, the court may without giving a verdict find the accused not guilty; that power may be exercised whether or not the accused has submitted that there is no case to answer.

(O) All verbal evidence shall be recorded and the recording and a transcript shall be made available to each party on request for the payment of a fee determined by the Registrar.

(h) 6.13.8 Any expert evidence sought to be adduced by a party must comply with the court’s requirements for expert evidence.

(i) (9) The court may determine that the procedure for the trial of a case is changed from that set out in Article if it considers it fair and just to do so and has given the prosecutor and the accused the opportunity to make submissions on the proposed changes.

(j) (10) If in a trial the judge becomes incapable of continuing with the trial, another judge may take over the conduct of the trial.

(k) 6.13.11 On application by a party the court may compel a person to appear and give evidence in a trial. That includes producing such documents and other things as the court may order. The court may issue a warrant for the arrest of a witness who fails to appear when ordered.